Winter 2012

Ethical Aspects of Political Dilemmas Faced by Appointed Judges

Ethical Aspects of Political Dilemmas Faced by Appointed Judges

Sunday, January 22, 2012 - 10:30am
Barry R. Schaller

*

Elected judges are not alone in having to deal with politics and politicians throughout their careers. This Essay discusses the ethical implications of judicial contacts with politics in states in which judges are appointed and reappointed for limited terms through the political process. A possible subtitle for this Essay might be: “Can appointed judges have a normal life while complying with the American Bar Association (ABA) Model Code of Judicial Conduct (Model Code) within the political universe where they work and live?” I write from the perspective of a judge who has run the gauntlet of multiple appointments, elevations, and confirmation processes in Connecticut over the course of more than thirty-seven years. I also offer the perspective of the chair of a judicial ethics advisory committee that, during the three years of its existence, has issued more than 130 ethics opinions, of which approximately ten percent related to political issues involving judges.

Introduction

Elected judges are not alone in having to deal with politics and politicians throughout their careers. This Essay discusses the ethical implications of judicial contacts with politics in states in which judges are appointed and reappointed for limited terms through the political process.1 A possible subtitle for this Essay might be: “Can appointed judges have a normal life while complying with the American Bar Association (ABA) Model Code of Judicial Conduct (Model Code)2 within the political universe where they work and live?” I write from the perspective of a judge who has run the gauntlet of multiple appointments, elevations, and confirmation processes in Connecticut over the course of more than thirty-seven years. I also offer the perspective of the chair of a judicial ethics advisory committee that, during the three years of its existence, has issued more than 130 ethics opinions, of which approximately ten percent related to political issues involving judges.

 

I.       Appointed Judges and Opportunities for Political Entanglement

While political connections and accompanying ethical questions arise in the professional lives of most appointed judges on a predictable basis, these issues are relatively nuanced compared with those that arise in the professional lives of judges located in states where they must run for office in order to retain their positions. Appointed judges in states such as Connecticut are not necessarily involved with politics at every reappointment stage. After the initial appointment, these judges’ careers are fairly well insulated from political interference. But appointed judges do engage with politics in at least three situations. First, judges who, for one reason or another, run into trouble with particular reappointments may risk or even encourage political intervention. Second, judges who aspire to a higher judicial office—that is, appointment to appellate courts—need political support. Finally, judges who cannot adjust to the somewhat isolated, faceless, and sometimes unrewarding world of judging may seek to engage in public service or private activities in ways that run afoul of judicial ethics rules. The first two types of political entanglement by judges are well known; the third may not be, however, and deserves further discussion.

There is much about the judicial role that generates a sense of personal acknowledgement and nurtures self-esteem. Judges tend to be the center of attention at their courthouses and receive expressions of respect and deference from attorneys, staff personnel, and the public. They are criticized as well, of course, but such criticism is often muted. As a result, some judges may even begin to imagine that they are infallible, although such flights of fancy often bring disastrous consequences. But a judicial career also can result in a loss of ego (or, perhaps more accurately, personal identity). In private life, the change may not be dramatic, but modern ethical expectations (which are far more permissive than expectations were thirty or forty years ago) require judges to adapt and curtail their social lives to accommodate public perceptions of appropriate behavior. When judges function in their judicial capacities, they are bound to act impartially, without emotion, and without revealing their personal feelings. Functioning without a sense of personal identity under the black robe can be suffocating to some individuals: The person under the robe is not speaking or acting as a person but as a judge, undifferentiated from all other judges. That, after all, is the point of wearing the robe—to promote the ideas of detachment, anonymity, and impartiality. As a result of this phenomenon, judges may feel deprived of personal satisfaction, giving rise to a need to be recognized and acknowledged as individuals. This problem occasionally leads some judges to exhibit eccentric or arrogant behavior on the bench. It leads other judges to seek alternative ways to find self-expression, self‑satisfaction, and recognition, such as through public speaking or writing. Both reactions can run afoul of the Model Code.

Many judges face a broad and continuous range of political contact issues—even in the absence of particular problems—because they must be reappointed periodically. They never cease to be dependent on the political branches for the duration of their careers (including post-retirement years in states where judges can continue to serve by designation). The process of seeking appointment for the first time, of course, poses no such problems because, as lawyers, they are free to engage in political contacts.

Based on my personal experience, it is fair to say that, prior to their initial appointments, most judges were involved in some form of partisan political activity or otherwise associated with politicians. Many were active in other kinds of social and civic activities, tending to involve advocacy, public policy, campaigning, lobbying, or brokering of one type or another. Many also have had difficulty leaving this life behind, and thus have tended to push the envelope of permissible activity even after they have taken the bench. Their former contacts make it easy to stay connected and enable them to be presented with opportunities that test the ethical limits of judicial involvement in politics. In order to provide guidance to judges who want to stay involved in the political realm or active in the development of law without transgressing the ethical boundaries of their office, the ABA has set forth a model set of ethical rules defining and explaining appropriate judicial conduct.

 

II.     Judicial Code Proscriptions and Prescriptions

The Model Code contains both provisions that restrict judges’ conduct and provisions that specifically permit activities, such as those that are educational or relate to the law, the legal profession, and the administration of justice.

The Model Code has been widely considered within the states and adopted by a substantial number, often with modifications.3 Connecticut adopted the 2007 version of the Model Code with modifications in 2011.4 One important provision of the Model Code that represents overriding general concerns about judicial conduct is Rule 1.2, which seeks to “promote[] public confidence in the independence, integrity, and impartiality of the judiciary” and to avoid both “impropriety and the appearance of impropriety.”5 Another relevant provision is Rule 1.3, which seeks to prevent judges from abusing the prestige of their office “to advance the personal or economic interests of … judge[s] or others.”6

A more specific concern under the Model Code is expressed in Canon 4, which provides that “[a] judge … shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”7 The Model Code then contains several rules that cover judges who are candidates for reappointment or higher office.

In addition to these explicit rules that govern political activities, Canon 3 of the Model Code deals with participation in governmental activities beyond service in the judicial branch.8 This canon addresses, among other things, appearances before governmental commissions, consultations with governmental officials, and appointments to governmental positions.

Finally, Rule 3.1 provides general restrictions on extrajudicial activities.9 Despite these restrictions, however, judges are given broad opportunities to address public policy issues and make contributions to the public good beyond their judicial work as long as their activities concern education, “the law, the legal system, or the administration of justice.”10 These opportunities provide outlets for judges who are motivated to continue public service on a different level than mere judging. But these rules do not cover every possible situation in which potential ethical issues may arise; judges sometimes face other problematic situations.

 

III.    Typical Ethical Dilemmas

The following questions reflect typical issues that judges face during the course of their careers. Most of these inquiries represent close calls; in other words, they are the types of situations that have actually led judges to seek advisory opinions. Many other questions arise that are resolved (either correctly or not) by judges acting on their own without seeking advice.

May a judge attend a political event honoring a relative?11

May a judge attend an event to raise funds for a public service center named after a political official?12

May a judge attend a gubernatorial inaugural ball? Attend free of charge?13

May a judge contact the governor’s legal counsel to recommend another judge for elevation?14 To recommend the appointment of a lawyer to a judgeship?

May a judge administer the oath of office to an elected legislator?15

May a judge accept an award from a criminal justice public agency?16

May a judge accept appointment to the board of a nonprofit organization that is affiliated with an executive branch agency?17

May a judge accept appointment to a governmental commission that concerns the law, the legal system, or the administration of justice?18

May a judge serve on an executive branch advisory committee that was created by statute?19

May a judge serve on an ad hoc advisory committee to an executive branch official to facilitate discussions? To connect the official with constituencies?20

May a judge write a historical piece for a blog or government website about his or her time holding a position in government?

May a judge appear in an executive branch agency’s employment recruitment video?21

A variety of situations can lead to such questions. Some issues can be resolved by avoiding a proscribed activity, while others can be resolved by recusal or disclosure in addition to complying with other conditions. The remainder of this Part explores several examples of common problems.

 

     A. Political Contacts for Appointment

One situation that gives rise to ethical issues occurs when judges seek appointment and reappointment. Even in states such as Connecticut, in which nonpartisan merit selection commissions provide a list of approved nominees to the appointing authority,22 the appointment process still entangles judicial nominees with politics, as they turn to political contacts to secure initial appointment. The need for judges to secure political support is logical given that the initial appointment process begins with a nomination by a governor or other political official or institution. Nomination without such connections is rare and, once established, these contacts often are not abandoned. Furthermore, such contacts may be useful for judges in seeking future appointments, in facing special reappointment problems, or in seeking to be elevated to an appellate court.23 In these three particular cases, strong political support is once again needed, and judges harness such support either through personal connections or through the connections of their supporters. My experience suggests that elevation is rare in the absence of some kind of strong political connection.

 

      B. Prior Political Activities and Contacts

When a judge has engaged in prior political activities or has prior political contacts, questions of how to maintain standards of judicial propriety also can arise. Many judges previously were politically active and may have established deep friendships with some politicians and casual connections to many others. As a result, judges often maintain continuing relationships with political officials, including friends and colleagues, with whom judges understandably are cautious about interacting.

 

      C. Political Activities of Family Members

Even where judges themselves are not involved in political activity, political activities of spouses and family members may implicate ethical issues. Although they are permitted to do so, judges have to be cautious about entanglement in social events, advertising, and other aspects of family members’ campaigns.24

 

     D. Interest in Public Service

Judges’ interest in public service of all types and continuing desire for involvement in public affairs beyond judging can also raise ethical concerns. A desire to be publicly integrated is a powerful (and positive) factor that motivates judges’ political and governmental involvement. Because most judges have been active in public affairs before their judicial careers, they are accustomed to speaking out, taking positions, making arguments, and expressing opinions. Many find it difficult to comply with restrictions on their public activities and associations, especially limitations on their ability to speak out on political issues and express opinions on legal issues that could call into question their impartiality.

Some judges carry their inclinations toward advocacy onto the bench and become activists in the way that they carry out their judicial roles. Rather than merely deciding cases, judges, for example, may tend to conduct trials or decide cases in ways that seek to influence or promote policies or augment their own reputations in particular areas of law. Examples of such behavior might include imposing consistently harsh sentencing or appearing to take unnecessary positions on issues with strong policy overtones.

 

     E. Use of Judicial Experience and Expertise

Judges develop expertise and experience in matters that they can use to benefit the public in addition to their judicial service.25 Some activities are allowed; some are not.26 Teaching law students, lawyers, and judges provides a vehicle for judges to employ these talents and skills and enhances the judges’ own legal skills and knowledge of the legal community. Serving on bar association and judicial branch committees helps to develop the law as well as to improve the overall competence of the legal profession and the administration of justice. Subject to ethical limitations, judges can be valuable additions to public committees and commissions.

 

     F. Lobbying Activities

Ethical concerns also arise when judges attempt to lobby the legislature and executive branch on annual budget matters and legislation affecting the judicial branch. The Model Code provides for such appearances.27 Such public lobbying efforts are both acceptable and ongoing in most states. Private lobbying, however, is a different matter. Although judicial branch representatives may contact the other branches of government concerning legislative and other policies (such as budgetary matters) that affect the judiciary, it generally is unwise for individual judges to do so. That kind of conduct may lead to unethical political contacts and activities, as well as subsequent recusal problems.

 

     G. Speech and Assembly Activities

Judges’ exercise of their constitutional rights of speech and assembly also can raise ethical questions and concerns. While judges generally have the right to lead normal lives and exercise the rights of ordinary citizens, they face certain limitations. For example, judges are prohibited from most fundraising activities and partisan political activities, even for social purposes.28 The education exception, mentioned in connection with proper usage of judicial experience and expertise, allows judges to engage in a wide range of activities—teaching, writing, and speaking29—so long as these activities do not violate other prohibitions, such as speaking about pending or impending matters when it can make a difference.30

 

     H. The Need for Defense

A final example of a situation in which judges may turn to political support is when they have the need to defend themselves from attacks in the media or the political arena by litigants, political figures, and others because of particular judicial decisions. Such charges often go unanswered since judges are reluctant to speak out in these situations for fear of inflaming already volatile situations and since supporters rarely come forward in their defense. As a result, judges in these situations generally face questioning about such matters when their appointments are due for renewal. Judges are at a great disadvantage—and are often vulnerable—in these situations, and, as a result, some fall by the wayside without assistance.

With so many possible situations in which difficult ethical questions may arise, one may wonder whether it is possible for judges to enjoy anything resembling normal lives. I now turn to that question.

 

IV.    Can Appointed Judges Avoid Problematic Political Entanglement?

Can judges have normal lives or must they accept being cloistered? Are the rules too strict? Are they too lenient? How can judges cope with the political realities of preserving their careers? First and foremost, judges must be willing to accept certain limitations on their personal and professional activities. The judicial calling demands a fair measure of sacrifice in order to fulfill one’s commitment. The saving grace, however, is that, as noted, permissible activities are adequate for most judges, such as engagement in activities that serve educational purposes or that are dedicated to improving the law, the legal system, and the administration of justice.

Some judges are forced to deal with political figures in the processes of reappointment and elevation to appellate courts. If, after long years on the bench, a judge’s original political supporters are no longer viable, that judge may venture into uncertain territory by establishing contact with politicians with whom he or she has had tenuous connections. A judge hardly can be faulted for engaging in this process. The nature of the political process, which can be vigorous and complex at the state level, may make it difficult for a judge to advance (or, sometimes, to preserve) his or her career without some kind of political support. Few appointments to appellate courts occur outside of the political context and in the absence of political backing. Fortunately, Canon 4 of the Model Code provides guidance in negotiating the process of securing reappointment and seeking elevation to higher judicial office.31

Ethics advisory committees should give due consideration to the necessity of protecting judges’ civic rights by defining realistically and as broadly as reasonably possible the types of educational activities in which judges can engage. This will enable judges not only to fulfill their personal goals and make full use of their abilities and experience, but also to contribute to society. In addition, advisory committees, when asked, should pay close attention to defining fairly and reasonably the full range of activities that concern the improvement of the law, the legal system, and the administration of justice. This will enable judges to contribute their knowledge and experience for the benefit of society.

 

Conclusion

Consistent with social changes over the course of the past four decades, judges no longer are compelled to live the isolated personal and social lives that were once the norm. Judges now are able to participate in a broad range of personal and social activities with a degree of informality that would have been unheard of in times past. Few would dispute the value of having judges who understand and appreciate the full dimensions of current American culture, particularly the changes in social structure and technology that have accelerated during the latter part of the twentieth century.

These cultural changes have affected all of society, even professionals in previously cloistered occupations. But despite changes and the relaxation of cultural and professional restrictions on judges’ personal lives, judges must still take care not to become complacent about their ethical and professional responsibilities. Serious self-discipline is still very much necessary in order to ensure compliance with all of the requirements of the Model Code. In exercising such restraint, judges are bound to place some restrictions on their personal and professional activities. They must accept the fact that their chosen profession, which is so vital to society, demands their wholehearted and complete efforts to make their judicial roles their highest priority, regardless of the necessary personal sacrifices that this might require.

 

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1.         The political involvement of a judge may vary somewhat depending upon whether a merit selection commission plays a role in his or her appointment process.

2.         Model Code of Judicial Conduct (2010), available at http://www.americanbar.org/content/dam/aba/administrative/professional_r….

3.         Special Comm. To Review the Code of Judicial Conduct, N.Y. State Bar Ass’n, Introduction to Code of Judicial Conduct Report 2011 (2011), available at http://www.nysba.org/Content/NavigationMenu42/April22011House
ofDelegatesMeetingAgendaItems/IntroductiontoCJCReport2011.pdf; Howland W. Abramson & Gary Lee, The ABA Model Code Revisions and Judicial Campaign Speech: Constitutional and Practical Implications, 20 Touro L. Rev. 729, 731 (2004) (“[N]early all of the states have adopted some version of the ABA Model Code of Judicial Conduct.”).

4.         Conn. Code of Judicial Conduct (2011), available at http://www.jud.ct.gov/
Publications/PracticeBook/Judicial_Conduct.pdf.

5.         Model Code of Judicial Conduct R. 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”); see also Conn. Code of Judicial Conduct R. 1.2 (same). These values are also expressed in Canon 1 of the Model Code, which states that “[a] judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.” Model Code of Judicial Conduct Canon 1; see also Conn. Code of Judicial Conduct Canon 1 (adopting language identical to that of the Model Code).

6.         Model Code of Judicial Conduct R. 1.3 (“A judge shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”); see also Conn. Code of Judicial Conduct R. 1.3 (“A judge shall not use or attempt to use the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so.”).

7.         Model Code of Judicial Conduct Canon 4; see also Conn. Code of Judicial Conduct R. 1.2 (same).

8.         Model Code of Judicial Conduct Canon 3 (promulgating rules consistent with the canon that “[a] judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office”); see also Conn. Code of Judicial Conduct Canon 3 (same).

9.         Model Code of Judicial Conduct R. 3.1 (listing general restrictions on extrajudicial activities); see also Conn. Code of Judicial Conduct R. 3.1 (listing general restrictions on extrajudicial activities for Connecticut judges).

10.      Model Code of Judicial Conduct R. 3.1 cmt. 1 (noting that “[t]o the extent that time permits, and judicial independence and impartiality are not compromised, judges are encouraged to engage in appropriate extrajudicial activities,” especially given that “[j]udges are uniquely qualified to engage in [such] activities that concern the law, the legal system, and the administration of justice”); see also Conn. Code of Judicial Conduct R. 3.1 cmt. 1 (same).

11.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2009-07 (2009), available at http://www.jud.ct.gov/Committees/ethics/sum/2009-07.htm (holding that Canon 7 of Connecticut’s Code of Judicial Conduct prohibits a judicial official from “attend[ing] a political gathering/fundraiser at which a member of the Judicial Official’s family residing in the Judicial Official’s household … is to receive an award”).

12.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2010-33 (2010), available at http://www.jud.ct.gov/Committees/ethics/sum/2010-33.htm (concluding that “based upon the facts presented … [a] Judicial Official [could] purchase tickets and attend [a] fundraising dinner” provided that certain conditions were met).

13.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2010-36 (2010), available at http://www.jud.ct.gov/Committees/ethics/sum/2010-36.htm (finding that under Rule 3.13, which “permits a judicial official to accept an invitation extended to the official and a guest to attend events associated with civic activities subject to the reporting requirements of Rule 3.1,” a judicial official could attend an “inaugural ball [that] is not a fundraising event for a political organization, but rather a civic event that marks the orderly transition of an elected official”).

14.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2011-19 (2011), available at http://www.jud.ct.gov/Committees/ethics/sum/2011-19.htm (holding that, while one judicial official “should not voluntarily recommend or suggest the name of [another] judge for higher judicial office to the Governor’s Legal Counsel,” he or she “may serve as a reference for [the other judge] and, if requested by the Legal Counsel, may provide a recommendation, by letter or otherwise, subject to … conditions”).

15.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2010-37 (2010), available at http://www.jud.ct.gov/Committees/ethics/sum/2010-37.htm (finding that “[b]ased on the facts presented,” a judicial official could “administer the oath of office to an elected legislative official with respect to a leadership position to which the official was elected by the members of the legislative body of which the official [was] a member”).

16.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2010-13 (2010), available at http://www.jud.ct.gov/Committees/ethics/sum/2010-13.htm (stating the conditions under which a “Judicial Official [could] receive an award from a public agency that represents the interests of a distinct segment of the criminal justice field for services that the Judicial Official provided prior to his or her appointment”).

17.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2011-15 (2011), available at http://www.jud.ct.gov/Committees/ethics/sum/2011-15.htm (holding that “Rule 3.4 does not permit [a] Judicial Official to serve as a member of the board of … directors of a foundation … , which does not concern the law, the legal system, or the administration of justice”).

18.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2010-05 (2010), available at http://www.jud.ct.gov/Committees/ethics/sum/2010-05.htm (holding that, while a “Judicial Official who is not a senior judge or judge trial referee [could not] serve as a … member or observer on the State Post-Employment Benefits Commission,” he or she could “serve as a member” or could “attend the Commission’s meetings as a representative of the Judicial Branch,” provided that certain conditions are met); Conn. Comm. on Judicial Ethics, Informal Op. 2008‑24 (2008), available at http://www.jud.ct.gov/Committees/ethics/sum/
2008‑24.htm (finding that under the set of facts at issue, Canon 5(g) prohibits, and Canons 2, 3(a)(6), and 6(f) potentially prohibit, a Judicial Official from “serv[ing] as a member of a team appointed by one municipality to meet with a team appointed by a second municipality and a private mediator in an attempt to resolve a dispute between the municipalities”).

19.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2011-03 (2011), available at http://www.jud.ct.gov/Committees/ethics/sum/2011-03.htm (holding that a “Judicial Official’s service on [a statutorily created] advisory committee [to an Executive Branch official] would be prohibited by Rule 3.4 of the Code of Judicial Conduct, which bars judges from accepting appointments to governmental committees except those that “concern[] the law, the legal system or the administration of justice” (quoting Conn. Code of Judicial Conduct R. 3.4 cmt. 3 (2011) (internal quotation marks omitted))); Conn. Comm. on Judicial Ethics, Informal Op. 2011-02 (2011), available at http://www.jud.ct.gov/
Committees/ethics/sum/2011-02.htm (same).

20.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2011-05 (2011), available at http://www.jud.ct.gov/Committees/ethics/sum/2011-05.htm (holding that a “Judicial Official’s service on [an ad hoc] advisory committee [to an Executive Branch official] would be prohibited by Rule 3.4 of the Code of Judicial Conduct, barring judges from accepting appointments to governmental committees except those that “concern[] the law, the legal system or the administration of justice” (quoting Conn. Code of Judicial Conduct R. 3.4 cmt. 3) (internal quotation marks omitted)); Conn. Comm. on Judicial Ethics, Informal Op. 2011-04 (2011), available at http://www.jud.ct.gov/Committees/ethics/sum/2011-04.htm (same).

21.      See, e.g., Conn. Comm. on Judicial Ethics, Informal Op. 2009-29 (2009), available at http://www.jud.ct.gov/Committees/ethics/sum/2009-29.htm (finding it “ethically permissible for [a] Judicial Official to participate in [a Department of Children and Families’] recruitment video” when that participation included speaking “about the judge’s expectations of social workers, the role social workers play in the legal process, and the impact they have on cases”).

22.      For more information on the judicial structure in Connecticut, see Online Media Resource Center, St. Conn. Jud. Branch,
http://www.jud.ct.gov/external/media/faq.htm (last visited Dec. 19, 2011).

23.      In Connecticut, judges are appointed for eight-year terms. Conn. Const. art. 5, § 2, available at http://www.cslib.org/constitutionalamends/constitution.htm (“The judges of the supreme court and of the superior court shall, upon nomination by the governor, be appointed by the general assembly in such manner as shall by law be prescribed. They shall hold their offices for the term of eight years, but may be removed by impeachment … .”).

24.      See, e.g., Model Code of Judicial Conduct R. 4.1 cmt. 5 (2010), available at http://www.americanbar.org/content/dam/aba/administrative/professional_r… (“Although members of the families of judges and judicial candidates are free to engage in their own political activity, including running for public office, there is no ‘family exception’ to the prohibition … against a judge or candidate publicly endorsing candidates for public office. A judge or judicial candidate must not become involved in, or publicly associated with, a family member’s political activity or campaign for public office.”); see also Conn. Code of Judicial Conduct R. 3.1 cmt. 4 (stating a similar rule to comment 5 in the Model Code of Judicial Conduct, but omitting the words “and judicial candidates” from the first sentence and “or judicial candidate” from the second sentence).

25.      See Model Code of Judicial Conduct R. 3.1 cmt. 1 (“Judges are uniquely qualified to engage in extrajudicial activities that concern the law, the legal system, and the administration of justice, such as by speaking, writing, teaching, or participating in scholarly research projects.”); see also Conn. Code of Judicial Conduct R. 3.1 cmt. 1 (same).

26.      See generally Model Code of Judicial Conduct Canon 3 (discussing limitations on judges’ personal and extrajudicial conduct); Conn. Code of Judicial Conduct Canon 3 (same).

27.      See Model Code of Judicial Conduct R. 3.2 (“A judge may not appear voluntarily at a public hearing before, or otherwise consult with, an executive or a legislative body or official except: (A) in connection with matters concerning the law, the legal system, or the administration of justice; (B) in connection with matters about which the judge acquired knowledge or expertise in the course of the judge’s judicial duties; or (C) when the judge is acting pro se in a matter involving the judge’s legal or economic interests, or when the judge is acting in a fiduciary capacity.”); see also Conn. Code of Judicial Conduct R. 3.2 (same, except omitting the words “pro se” from subsection (C)).

28.      See generally Model Code of Judicial Conduct Canons 3 & 4 for an explanation of the restrictions on judges’ “personal,” “extrajudicial,” and “political or campaign” activities. Conn. Code of Judicial Conduct Canons 3 & 4 similarly restrict Connecticut judges.

29.      See supra note 10 and accompanying text.

30.      Model Code of Judicial Conduct R. 2.10 (regulating “Judicial Statements on Pending and Impending Cases”); see also Conn. Code of Judicial Conduct R. 3.7 (same).

31.      Model Code of Judicial Conduct Canon 4 (“A judge or candidate for judicial office shall not engage in political or campaign activity that is inconsistent with the independence, integrity, or impartiality of the judiciary.”); see also Conn. Code of Judicial Conduct Canon 4 (“A Judge Shall Not Engage in Political or Campaign Activity that is Inconsistent with the Independence, Integrity, or Impartiality of the Judiciary.”). Model Code of Judicial Conduct R. 4.3 further specifies that “[a] candidate for appointment to judicial office may: (A) communicate with the appointing or confirming authority, including any selection, screening, or nominating commission or similar agency; and (B) seek endorsements for the appointment from any person or organization other than a partisan political organization.” See also Conn. Code of Judicial Conduct R. 4.2 (“A judge who is a candidate for reappointment or elevation to higher judicial office may: (a) communicate with the appointing confirming authority, including any selection, screening, or nominating commission or similar agency; and (b) seek endorsements for the appointment from any person or organization other than a partisan political organization, provided that such endorsement or the request therefor would not appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.”).

Barry R. Schaller is a Judge on the Connecticut Appellate Court and Clinical Visiting Lecturer in Law, Yale Law School. Justice Schaller served on the Connecticut Supreme Court from 2007 to 2008 and continues his judicial service on the Connecticut Appellate Court, to which he was appointed in 1992. He was appointed to the Connecticut trial bench in 1974. He presently chairs the Committee on Judicial Ethics for the Connecticut Judicial Branch. He received his B.A. from Yale College in 1960 and his J.D. from Yale Law School in 1963. This Essay is adapted from remarks delivered on October 22, 2011, at the Yale Law & Policy Review’s Conference on Judicial Politics.

Cite this piece: Barry R. Schaller,

Ethical Aspects of Political Dilemmas Faced by Appointed Judges

, Yale L. & Pol'y Rev. Inter Alia (Jan. 22, 2012, 10:30 AM), http://ylpr.yale.edu/inter_alia/ethical-aspects-political-dilemmas-faced-appointed-judges.